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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


FIRST APPELLATE DISTRICT 
DIVISION FOUR



    Plaintiff Karen [S] appeals from a judgment entered after jury trial in favor of defendants, Chevron U.S.A., Inc. and [Mr. X], a Chevron employee, on her complaint seeking damages for her personal injuries when she was struck by an automobile owned by Chevron and driven by [X].

Background 

    Very shortly before 6 a.m. on the morning of January 24, 1996, Karen [S] was crossing a Richmond street when she was struck by an automobile driven by [X].[1] Almost immediately after the accident occurred [X's] coworker, [Mr. P], who was to meet [X] at a nearby café, arrived at the scene. [P] testified that [S] was lying on the pavement some 8-10 feet beyond the front bumper of the Chevron sedan that [X] had been driving. 
    Apparently neither [X] nor [S] saw one another until seconds before the accident occurred. The conditions on the morning in question were variously described by the witnesses at trial as misty, with wet pavement, and still dark enough for cars to be using their headlights. At the time of the accident [X] testified he was driving with his headlights on low beam. [X] testified that he was making a left turn from one city street to another at a safe rate of speed when he suddenly saw movement to his right and glimpsed [S] face as she turned toward him moments before he struck her. The force of the impact caused her torso to roll up onto the hood of the sedan and she was propelled off the car onto the pavement.
    The jury returned a special verdict finding defendant [X] was not negligent. [S] unsuccessfully moved for a new trial. This timely appeal followed.

Discussion

   On appeal [S] contends there is no substantial evidence to support the jury’s verdict that [X] was not negligent. She further contends that the trial court erred in denying her motion for a new trial. 
    An appellate challenge to the sufficiency of the evidence to support the jury’s verdict requires this court to review the entire record to determine only whether there is substantial evidence, contradicted or uncontradicted, to support the verdict. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1040, 1053.) We review the evidence in the light most favorable to the prevailing party and resolve all conflicts in its favor. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) When, as in this case the testimony is in conflict, we defer to the assessment of witness credibility which the jury must have made in order to reach its decision. (See Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1024.) Likewise an appellate court does not reweigh the evidence, that being a task solely for the jury as the trier of fact. (Shamblin v. Brattain (1998) 44 Cal.3d 474, 479.) 
    Evidence is substantial if it is proof of the essentials which the law requires (Toyota Motor Sales U.S.A., Inc v. Superior Court (1990) 220 Cal.App.3d 864, 871-872)
Accordingly the emphasis in our inquiry is upon the quality of the evidence and whether the inferences advanced in support of the verdict are logical and reasonable ones. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)
    Vehicle Code section 21950 provides in pertinent part that “[t]he driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk.” (Vehicle Code, 21950, subd. (a).) Accordingly, it has long been the rule that if the driver of an automobile fails to yield the right of way to a pedestrian in a crosswalk he has violated the statute in the absence of a reasonable explanation for his conduct will be found to have committed negligence as a matter of law. (LaManna v. Stewart (1975) 13 Cal.3d 413, 427 (and cases cited therein).) To overcome the presumption of negligence the defendant must show that “he did what might reasonably be expected of a person of ordinary prudence, who desired to comply with the law, acting under similar circumstances.” (Byrne v. City and County of San Francisco (1980) 113 Cal.App.App.3d 731, 740.) 
    Vehicle Code section 21950 also provides, however, that a pedestrian is not relieved of her duty to use due care for her own safety and thus shall not “suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute an immediate hazard.” (Veh. Code, 21950, subd. (b).) We have previously described the effect of the duty imposed upon a pedestrian to be “[w]hen…[a] motorist has acted reasonably and the pedestrian has failed to exercise due care for her own safety, the law of this state does not permit the technical violation of the pedestrian’s right of way statute to impose negligence…as a matter of law.” (Byrne v. City and County of San Francisco, supra, 113 Cal.App.3d at p.742.)
    [S] argues [X] had an opportunity to see her and to avoid the collision; that she was either in or so close to the crosswalk at the time she was struck as to be considered to be within the crosswalk and; therefore [X] either violated the right of way granted to a pedestrian in a crosswalk without reasonable explanation or was negligent by failing to see her in time to avoid hitting her.
    As to whether or not [S] was in the crosswalk at the time she was struck by [X], [S's] accounts of her position were difficult to reconcile with the evidence of where she ended up. By her account she approached the curb via a path down the center of a wheelchair ramp which opened into the crosswalk and looked both to her left, the direction from which [X] was approaching, and to her right. She remembered glancing to her right toward the bus stop to see if an acquaintance was waiting there. As she crossed the street she looked down to adjust her backpack and saw a single orange reflector beyond the crosswalk stripe and outside her right foot. 
    At her deposition [S] had testified that when she looked down she saw two orange reflectors by her right foot. When asked to do so at the deposition she had marked her position on a photograph of the crosswalk opposite a solid double line near the center of the street; that photograph taken after the accident showed only a single orange reflector at that spot. [S] speculated that one of the reflectors must have come off sometime after the accident and before the photograph was taken. When confronted with the discrepancy at trial [S] testified that “there is a bit of confusion…in my own mind as to…whether it was one or two [reflectors].” 
    Photographs taken at the accident scene showing [S] still lying on the pavement were also introduced at trial. Those photographs showed double orange reflectors running along a double yellow line in the center of the street, and a single reflector adjacent to the crosswalk as part of a second row of reflectors closer to the curb off which [S] had just stepped. Thus, if immediately before the accident [S] saw only a single orange reflector by her foot she would not have been most of the way across the street but fairly close to the curb.
    [S] testified that on the morning in question she had driven to the area because she was late and was concerned that she might otherwise miss her bus to work. Her bus stop was across the street and to her right while [X] was approaching from her left. A trier of fact could have concluded that it would have been physically impossible for her to have been already near the center of the street and thus clearly in [X's] view when she was struck by his car. There is no evidence [X] was traveling at an excessive speed. Indeed, he claimed to have braked the moment he caught sight of her and the accident photographs show his car was indeed stopped parallel to the sidewalk with only its rear bumper overlapping the eastern boundary line of the crosswalk. 
    From this evidence a trier of fact could infer a point of impact not far from the curb with a car traveling at a moderate rate of speed; such an inference would be consistent with the evidence that [S] received injury to the left side of her body when she was hit by the right front of the car. Likewise the position of the car and the spot in which [S] landed were consistent with the inference that she had just started to cross the dimly lit street either within or to the right of the crosswalk when she was struck. She was admittedly in a hurry, looking off to her right toward the bus stop and looking down as she walked to adjust her backpack. Moreover she remembered seeing another car off to her left, but did not recall seeing the lights of [X] car approaching from her left. The physical evidence was such that a trier of fact could conclude that [S] had not walked most of the way across the street inside the crosswalk, but instead had taken a few steps off the curb without looking to her left and was either within the crosswalk or taking a more direct but oblique path to the right of the crosswalk toward her bus stop when she was struck. 
    [S] argues on appeal that even if she was outside the crosswalk [X] was negligent because he should have used due care while passing through the crosswalk. (Nichols v. Leslie (1935) 7 Cal.App.2d 590’ 595.) In Leslie a pedestrian was struck while in a crosswalk apparently because the driver was looking to the right and left for cross traffic as she drove across the intersection. (Id. At p.594.) As the court in Leslie noted, “[t]he extent of care to be exercised by a pedestrian in crossing a street must necessarily be relative to the condition of traffic and the particular surroundings.” (Id. At p.595.) 
    The accident in Leslie occurred on a clear day at 9:30 in the morning. (Nicholas v. Leslie, supra, 7 Cal.App.2d at p.594.) Here the evidence was that [X] was paying attention to where he was driving; however, the lighting was dim, the weather misty, the roadway was wet and reflective. [S] herself conceded the intersection was dangerous. From the circumstances and the physical evidence at the accident scene there was substantial evidence from which the jury could conclude that [X] was acting reasonably, but [S] failed to act with due care for her safety. Having made that finding the jury properly could conclude that [X] was not negligent.
    By her notice of appeal [S] also purports to appeal from denial of her motion for new trial. However, in her briefs she advances no argument or authority in support of her view that the ruling was erroneous. Accordingly she is deemed to have waived that issue. (People v. Stanley (1995) 10 Cal.4th 764,793.)

Disposition

The judgment is affirmed.
  
J. Hanlin
J. Poche’
J. Sepulveda  

[1] The parties in this case have elected to proceed under rule 5.1 and by way of their appendices have provided this court with certain trial exhibits. To the extent that appellant argues on the basis of other evidence which so far as the record before us reveals was not admitted at trail we have not considered it. (Rebney v. Wells Fargo Bank (1990) 220 Cal.App.#d 1117, 1143.)

 

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